Mayes v Australian Cedar Pty Ltd

[2006] NSWSC 597

Reported Decision: (2006) ATPR 42-119

New South Wales

Supreme Court

CITATION:	Mayes v Australian Cedar Pty Ltd [2006] NSWSC 597
HEARING DATE(S):	24/04/06, 26/04/06, 27/04/06, 31/05/06, 01/06/06
JUDGMENT DATE :	20 June 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	Judgment for the plaintiff
CATCHWORDS:	PRODUCT LIABILITY - MANUFACTURED PINE DECKING - LIABILITY OF IMPORTER PURSUANT TO TRADE PRACTICES ACT AS DEEMED MANUFACTURER - NO LIABILITY AT COMMON LAW SHOWN - PERSONAL INJURY TO PLAINTIFF WHEN DECKING COLLAPSED - DAMAGES ASSESSED
LEGISLATION CITED:	Trade Practices Act 1974 (Commonwealth)
PARTIES:	Norman Edgar Mayes v Australian Cedar Pty Limited trading as Toronto Timber & Building Supplies
FILE NUMBER(S):	SC 20102/04
COUNSEL:	R. Letherbarrow SC with D. Wilson, P. Slater and A. Casselden (Plaintiff) J.B. Turnbull (Defendant)
SOLICITORS:	Stacks (Taree) (Plaintiff) McCabe Terrill (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

20 June 2006

20102/04 - NORMAN EDGAR MAYES v AUSTRALIAN CEDAR PTY LIMITED trading as TORONTO TIMBER & BUILDING SUPPLIES

JUDGMENT

1 HIS HONOUR: The plaintiff, born 19 July 1947, lived with his wife and family for many years at 34 Ourimbah Street, Lisarow. He had qualifications in mechanical engineering and worked in the air conditioning industry but was retrenched. He undertook a TAFE course in order to obtain a contractor’s licence and he established a handyman business which he operated in partnership with his wife, who attended to the administrative aspects of it. He had a relatively steady flow of customers as a result of good relationships with local real estate agents, who included one of his sons.

2 Among other things, he had experience in building timber decks. He obtained an owner/builder’s permit to erect a new deck of large dimensions adjoining an existing deck at his home. I will refer to this new construction as “the deck”. The deck was to be thirteen metres by three metres. Precise measurements, as built, appear in a report of the defendant’s expert Mr Keith (Exhibit 4B) together with a calculation that 401.47 linear metres of decking has been laid to form it.

3 The plaintiff was a customer of the Treated Pine Shack (the Pine Shack) at West Gosford, a business in which three brothers Luke, Robert and Ira Matthews were engaged. He ordered decking and other necessary timber to build the deck from them. It was known that this order was for the plaintiff’s own purpose and not for one of his clients, but he was nevertheless charged at the trade rate.

4 I accept that the plaintiff placed his order with the Pine Shack by specifying the thirteen metres by three metres dimensions. The formula to determine the linear metreage of decking required was to multiply squareage (13x3) by eleven. This should have resulted in a calculation of 429 linear metres (13x3x11). The relevant invoice specified 396 linear metres which can be back calculated, at least in one way, as 12x3x11. No one claims sufficient recollection of the circumstances to assert that a simple error (of one metre) was made when preparing the invoice, which was rectified by in fact supplying the larger amount. The discrepancy is a matter strongly relied upon by the defendant and I will return to elaborate about this.

5 Timber decking was delivered to the work site by an employee of the Timber Shack. The plaintiff commenced to build and was, at various times, assisted by friends and neighbours, Mr Pagden, Mr Beswick and Mr Hughes.

6 A beam (RSJ) had been delivered by crane and placed upon brick piers by riggers. This was done on a Thursday. On the following Saturday the plaintiff, with assistance, put the necessary joists into position. The next morning the plaintiff and his assistants started to lay the decking. It was laid in a staggered fashion which is accepted as good building practice for such construction. At a point considerably less than half way through the task the plaintiff stepped on a piece of decking which broke underneath his foot and he fell through catching himself on the joists. The deck was three metres above ground level and he did not fall all the way but he suffered what he thought to be a graze to his right leg descending down to his shin. It was packed in ice and elevated. About two days later the plaintiff resumed the job and it was completed over the next couple of weeks.

7 As will later emerge, the plaintiff’s injury was somewhat more severe than first appeared. He seeks damages in respect of the injury and its consequences. It is fair to observe that he has never propounded other than what might be categorized as a relatively modest claim and it is necessary to record a number of matters concerning the litigation and how it came to be transferred to this Court.

8 The plaintiff alleged that he suffered his injury because of a defect in the decking supplied. The defendant (Toronto Timber) is an importer, inter alia, of treated pine timber decking from New Zealand. The plaintiff maintains that the defective decking which he bought from the Pine Shack was part of such an import. The plaintiff has not sued the Pine Shack his direct supplier but claims he is entitled to damages from Toronto Timber at common law and/or pursuant to the provisions of the Trade Practices Act 1974 (Commonwealth) by which statute the defendant is a deemed manufacturer of goods which it imported and is statutorily liable where injury results from defect in the goods.

9 It is convenient to deal first with the claim at common law. The plaintiff had no dealing with the defendant. The uncontradicted evidence is that the defendant’s operation does not involve physical handling of the imported goods. The principal of Toronto Timber, Mr Israel, places an order and on arrival of the goods in Australia, customs clearance is arranged by his agent after which he further arranges for a carrier to deliver goods directly to a client, for example, to the Pine Shack. Treated pine which he imports from New Zealand and in particular from Eastown Timber Products arrives in strapped and packaged units. It is not unpacked or inspected by Toronto Timber prior to being forwarded to its customer.

10 There is no evidence to suggest, nor do I find, that it is a reasonable requirement in the interest of an ultimate purchaser from Toronto Timber’s clients that it should deconstruct the package and inspect the goods. Mr Israel’s assertion that this would not be commercially viable was not disputed. Neither would I infer that reasonable response to risks that the goods might be defective in some way would require Toronto Timber so to do.

11 The claim at common law must fail.

12 The statutory path to be followed in order to demonstrate the potential liability of the defendant pursuant to Pt VA of the Trade Practices Act is lengthy. It is traced in the opening of Mr Letherbarrow SC for the plaintiff, which has been transcribed and which I need not recapitulate having regard to the absence of any challenge and the stance of the defendant through its counsel Mr Turnbull that the issue is whether the plaintiff has proved that the defective deck board was supplied by the defendant. Of course, such an onus rests on the plaintiff and, in addition to the submission that the plaintiff has failed, Mr Turnbull has advanced evidence in order to seek to demonstrate positively that the defective goods were not imported by his client.

13 Obviously, if the goods are not shown to have been supplied to the Pine Shack through Toronto Timber there must be judgment for the defendant. It is equally obvious that if the evidence demonstrates that it was so supplied, the plaintiff will (subject to reduction of damages for contributory negligence) succeed. The litigation has been conducted on that basis.

14 An off-cut of the actual deck board which failed was retrieved. The balance of the decking piece beyond the fracture was in fact used in the staggered construction. I accept the evidence of the continuity of the handling of the fractured end piece (which was not challenged) and that piece became Exhibit D. Whilst the experts retained by each party (Mr Beckett and Mr Keith) are in contradiction about other issues, they agree that the deck board was defective. Much of their reports and testimony is directed to regulatory standards and gradings but the effect of the evidence of both of them is that the timber in the deck was not fit for such use.

15 Because it is germane to my conclusion as to the reliability of a witness (Mr Brasell) I resume some comment about the litigation. The plaintiff brought his claim in the District Court. It was removed into this Court when the defendant sought indemnity or contribution from Eastown Timber of Wanganui, New Zealand, the alleged actual manufacturer of the decking. The jurisdiction of the Supreme Court as distinct from the District Court is necessary if it is needed to enforce in New Zealand a successful cross claim. According to the file records, a hearing was fixed for 24 October 2005 when it was apparently not reached. It was refixed to commence (as it did) on 24 April 2006. On 4 April 2006 the defendant by motion sought a separate hearing of the cross claim. On 12 April 2006 an assistant registrar made an order for such separate hearing by consent of all parties.

16 Therefore the hearing has proceeded only to determine the principal action. Mr Brasell is the principal of Eastown Timber, the cross defendant corporation. He has testified that the cross defendant’s insurer has declined indemnity in respect of any judgment outside of New Zealand and has not yet decided whether it will indemnify under a policy held by the cross defendant in the event of a judgment being entered in New Zealand.

17 It is in these circumstances that an action, in respect of which the plaintiff has never suggested that the potential damages are beyond the jurisdictional limits of the District Court where he commenced his action, has been heard in this Court.

18 It is a practical way to set about determination of the critical issue – was the defective deck board which collapsed under the plaintiff supplied to him by the defendant via the Pine Shack? – by dealing with the pros and cons of counsel’s arguments, any relevant evidence and my findings in respect of them.

19 The deck board ordered by the plaintiff from the Pine Shack was delivered by its truck. I accept his evidence that the bundle consisted of pieces of the same length, give or take 50 mm. I further accept that the standard length of the equal pieces was 4.8 metres. I comment that it is apt to bear in mind that what is involved is decking timber and I am prepared to infer that it is not the subject in manufacture to the level of precision which might be applied, for example, to cutting facets on a gemstone. This observation might be borne in mind when I come to the evidence of the experts. Mr Beckett at one point asserted that his colleague (they both work through the Unisearch organization) had attempted “at great length to complicate the simple issue of a snapped decking board on a private residence in a municipal area”. In the event, I would apply the comment regarding complication to their evidence generally.

20 The plaintiff testified that he neither possessed nor obtained decking timber which he used in the deck other than that which he had obtained from the Pine Shack. I accept that evidence. Mr Pagden arrived on the Sunday. There was a stack of decking which was drawn from as required. All the pieces were to his recollection, of the same length. He thought that they were five to six metres in length but for reasons to which I will later turn, his estimate of length was wrong. What is important is his memory of the single stack and the identity in the length of the pieces. Mr Hughes also noticed that the decking pieces were stacked together and were “all the same”. He was principally engaged in cutting the lengths to enable the laying of the staggered pattern and nailing the pieces down. He saw no decking at the property other than that which was within the single stack. The off-cuts were piled and at the end of the day placed in a barrow and moved to the back of the shed. It was from this barrow that Mr Hughes later retrieved the fractured end piece which became Exhibit D. Mr Beswick had helped putting in the joists on the Saturday. He does not recall any timber decking of any differing length.

21 I would not have expected any of Mr Pagden, Mr Hughes or Mr Beswick to have been paying particular attention to what has become intensely examined issue in the litigation, namely the precise length of the pieces, but in that they were volunteers helping a friend or neighbour their general recollections are in harmony with the evidence of the plaintiff and supportive of my finding that there was one stack of timber decking and it was all of the same length. This is also consistent with later evidence of Mr Luke Matthews who said that, unless there was a specific request, orders for timber were generally filled by the Pine Shack with pieces of identical length.

22 The deck has been the subject of much scrutiny and, indeed, parts of it were extracted for examination by the experts and these pieces have become Exhibits P1, P2 and P3. There was no challenge to the plaintiff’s evidence that the longest board in fact in the completed deck was 4.78 metres. This is of compelling significance when it is observed that the defendant’s expert, Mr Keith, subjected the deck to detailed scrutiny and measurement. To my mind that circumstance (the measure testified to by the plaintiff) together with the capacity of the off-cuts to be contained in a single wheelbarrow, convincingly demonstrates that the decking used on the job was of 4.8 metre lengths and not longer pieces of either 5.4 metres or 6 metres as has been suggested in some of the defendant’s submissions.

23 The critical reason for establishing a length as 4.8 metres is that the Pine Shack had two sources of decking for sale to customers at the relevant time, the defendant (Toronto Timber) and Pine Solutions Australia. It is plain from analysis of the documentation that 4.8 metre lengths were not sourced by the Pine Shack from Pine Solutions Australia at or about the relevant time.

24 It is, of course, a necessary implication of the case being put on behalf of the defendant that the plaintiff must have sourced decking which was used other than from the delivery by the Pine Shack. A prominent factor of support for this argument is said to be derived from the measurement of the actual linear metres in the deck as built (plus the wastage calculated by Mr Keith, per Exhibit 5B) and the insufficiency of 396 linear metres (per the Pine Shack invoice to the plaintiff) to fulfil those requirements.

25 Whilst I accept the evidence of Mr Luke Matthews that the Pine Shack procedure was to copy an invoice and send it to the yard to fill an order, following that procedure does not prove the actuality of what was assembled in the yard by the yard workers and subsequently delivered. As I have observed and I interpolate, it is supportive of the plaintiff’s contention that Mr Luke Matthews confirmed that in the absence of a particular request an order for decking would be filled with pieces of the same length. Mr Ira Matthews prepared the invoice and although he remembers the sale “vaguely” and he knew the plaintiff as a regular customer, in cross examination he agreed that he was given the deck area by the plaintiff and multiplied it by eleven to produce the figure of 396 linear metres. If he had been given the measures of 13x3 as the plaintiff testified and purported to multiply that by eleven and calculated 396 linear metres, he got his sum wrong.

26 It is not beyond the bounds of contemplation that, bearing in mind the plaintiff’s evidence that he prescribed his requirement as “three metres by thirteen metres” rather a calculated thirty nine square metres, 396 linear metres was the result of doing the wrong sum when preparing the invoice but the right factors were borne in mind when the order was made up.

27 I note that Mr Turnbull has submitted that such a proposition was not put (Mr Ira Matthews was called in the plaintiff’s case) but it is compelling to note that Mr Keith’s measurement of the deck plus the estimated wastage would be comfortably accommodated within a delivery of 429 linear metres which would be the result of multiplying by eleven the dimensions of the intended deck which the plaintiff articulated.

28 I have already noted that the defective board failed at an early point in the laying of the deck (the mark on Exhibit A5 provides a useful guide) and I do not find it credible that the plaintiff would have used some planks at that point “foreign” from the Pine Shack before the delivery from them ran out. I say this hypothetically because I do not accept that there was any timber available or used in the decking other than that which came from the Pine Shack delivery.

29 As the plaintiff had enough supply to finish the job, I am satisfied that the probability is that 429 linear metres was in fact delivered from the Pine Shack. That would be entirely consistent with the appropriate sum being done when the plaintiff placed an order for enough decking to build a deck thirteen metres by three metres.

30 The findings that the decking which failed was defective and causative of the plaintiff’s injury (the contrary was not suggested) and that the particular piece was imported by the defendant and acquired by the plaintiff through the Pine Shack suffices to entitle the plaintiff to a verdict pursuant to the Trade Practices Act.

31 However, I should deal with a number of specific contentions against those findings which have been advanced on behalf of the defendant. The trial was heard in two stages, first on 24, 26 and 27 April and second on 31 May and 1 June. Mr Brasell gave evidence on both occasions, having travelled each time from New Zealand. On the first occasion he was shown Exhibit D (of which he had previously only seen photographs) and he said that the reeding (the small semi cylindrical moulding which gives a corrugated appearance to the surface of the decking on one side) did not look the same as that which came from the Eastown factory. He said that there was very evident pith in the piece. He added that he could observe that “the edges are not square, they are bevelled, which is not the way we machine our wood”. In summary he said that there were “three issues” which made him say that Exhibit D was not from the production of the cross defendant (and hence imported into Australia by the defendant and supplied to the plaintiff by the Pine Shack). These were the appearance of the reeding, the presence of pith and the bevelled edges.

32 Over objection by the plaintiff, I permitted the recall of Mr Brasell at the resumed hearing. He testified that during the adjournment he had located some packets of decking produced in 2001 (apparently unsold because they were of unpopular shorter lengths) and he cut and brought a piece (Exhibit 3) with him. He also brought what he described as “the template that we used to produce the decking for the Australian market”.

33 He was given access to Exhibit D and, putting the template to it, he said that whilst the points tended to line up there was a difference in the curve of the rib.

34 The transcript page 222 reads “point tends to line up” but this should read “points tend to line up”. On the other hand he said that the template and Exhibit 3 produced a very close fit although it did not fit exactly.

35 It emerged only in cross examination that in addition to the template Mr Brasell has conveyed to Australia a relevant cutting blade. More than one blade is used to machine the decking and the template is used “to form the knife and the knife is then used to machine the timber”. It follows that the pattern of the reeds on the corrugated side of the deck board is actually cut by the blade.

36 The blade produced by Mr Brasell had been recently sharpened. He agreed that before this was done, it was both rusty and blunt. Both the evidence and common sense demonstrate that, in use, the blade will, as use continues, become blunted. I am abundantly satisfied that this phenomenon will have an effect upon the shape of the reeds and for that reason it is deceptive to seek to draw inferences on the very delicate basis that the reed shaping should be perfectly round. The blade is essentially cutting timber grooving while fixed to a block and it gouges out the groove whilst it is rotating multiple times per second. When in use the blade needed to be routinely sharpened on a frequent basis. Mr Brasell did not give evidence that there was any particular routine of sharpening related to quantity of timber processed. I am satisfied that as the blade blunts there will be differences in the appearance of the reeding on the timber product.

37 I do not consider Mr Brasell an independent witness. His interests, in a practical sense, coincide with those of the cross defendant. It would obviously be in the interests of the cross defendant if the plaintiff’s claim against the defendant failed. That consideration is not a matter which provokes positive disbelief of Mr Brasell’s testimony but it is a background context in which what he contends needs to be assessed.

38 I do not accept his evidence that Exhibit D did not emanate from the Eastown factory. The contrasts or comparisons between the reeding on the five wooden exhibits (Exhibit D, P1, P2, P3 and 3) and the analyses by the experts and their disagreements lead me to conclude that little reliability can be placed upon opinions about the pattern or shape of the reeding. I repeat my observation that it is mass manufactured deck board with which one is dealing and not high precision sculpture or the like. I am satisfied that the ultimate appearance is affected by the sharpness of the blades, the bluntness of which develops during use and the possible encounter of the blades with differing densities of timber, knots and a whole range of conceivable impediments.

39 The second “issue” adverted to by Mr Brasell is the pith in Exhibit D. I accept that during the manufacturing process there is included a supervision which is intended to reject any timber which displays pith. That inspection is visual and is conducted in respect of production of decking timber which can be measured in kilometres. I would not expect visual inspection to achieve a standard of perfection in elimination of every piece of wood containing pith and the fact that this piece (Exhibit D) did so does not cause me to conclude that it did not come from an Eastown production run.

40 The third matter relied upon by Mr Brasell when he gave evidence on the first occasion was the appearance of bevelled edges on Exhibit D. I have quoted his testimony in this regard. I found nothing about what he then said to be obscure or ambiguous and it was a clear statement that on Exhibit D the edges were not square. When he returned to give evidence on the second occasion he was shown Exhibit 3, the piece which he had cut from the packet of 2001 manufacture retrieved from the factory during the adjournment and his attention was drawn to the rounded edges which appeared remarkably similar to the rounded edges on Exhibit D. He claimed that what he meant on the previous occasion what that “the plane of the edge is out of square, out of 90 degrees”. Mr Brasell claimed it was a matter of terminology and that he would not call rounded corners bevelled. The use of this previously unexpressed particular meaning of “bevelled”, whether or not in common use in the industry (I do not know one way or the other) without elaboration and the circumstances which I have described whereby the template but not the blade which forms the actual cut was not produced until sought by the plaintiff and the combination of matters to which I have above referred to persuade me that the evidence of Mr Brasell was not reliable and I decline to act upon it.

41 It is perhaps of interest to note that in final address concerning the evidence of Mr Brasell, counsel for the defendant, elaborated upon the “issues” of pith and reeding but not upon what the witness had said about bevelling.

42 This brings me to the evidence of the experts.

43 There is one matter with which I will deal discretely. Exhibit O is the result of an analysis by Mr Beckett of a photograph (plate 9 in his report) which is similar to a wide print (Exhibit A3) the purport of which was to affirm the evidence of the plaintiff that the decking was supplied in 4.8 metre lengths. For reasons already given I have concluded that that was the case. I would not rely upon Exhibit O for this purpose and it suffices to record a reference to the cross examination of Mr Beckett concerning the camera position and unknown factors to indicate why I would not rely upon the calculations made on Exhibit O.

44 As I have noted, Mr Beckett and Mr Keith are agreed that the decking was substandard but they are in vigorous disagreement about whether it can be concluded from a scientific point of view that Exhibit D can be identified as a product of Eastown and therefore the subject of import by the defendant.

45 Little is to be gained by my recapitulation of their various opinions on examining the exhibits which amount in effect to specimen samples and their visual conclusions about the shape of the reeding, whether it be curved, saw toothed, or in the shape of an inverted V. Against the background of this dispute counsel invited me to examine the pieces. I can say that, upon inspection, I can observe that Exhibits D, P1, P2 and P3 all manifest obvious knots in the timber in contrast with the sample (Exhibit 3) from the recently discovered unsold stock. Exhibit 3 is a small piece only about 14 cm or 5½ inches long. When it is recalled that Exhibits P1, P2 and P3 were taken from different parts of the deck, their coincidence of simply appearance is supportive of the conclusion that the content of the deck came from a single source.

46 The knots, as reported through Mr Keith (Exhibit 4A) by Mr Herbert, the chief timber inspector with the New South Wales State Forests, were a telling indication of the failure of the timber in the deck to meet required grades.

47 It is not insignificant that the case propounded by the defendant is not that the plaintiff must have intruded a lot of “foreign” timber into the supply from the Pine Shack but that, on its case that 396 linear metres was supplied, he must have obtained something in the order of 25 linear metres additional decking from somewhere else. I derive that estimate from Mr Keith’s evidence plus his estimated wastage.

48 It would be unlikely in my view that the effective random samples which became Exhibits P1, P2 and P3 would have all come from such a supplementary supply and yet manifest the similar defect. I am satisfied that the timber was probably sourced from the same supply including the failed board of which Exhibit D is a part, and that it came from that supplied by the Pine Shack and thus was part of the import of the defendant.

49 The plaintiff has proved what is necessary to support his claim and there should be a verdict in his favour.

50 On the issue of damages a contention of contributory negligence was raised. Counsel adverted to the evidence that there were perceptible dangers in walking upon unnailed decking and the concession of the plaintiff that he was aware of this. However, such danger had nothing to do with the risk which in fact fell due. It is irrelevant that the plaintiff may have been aware of any number of potential dangers because his injury was, on any view of the evidence, caused only by the fracture of a defective board under his body weight. There was no suggestion that this occurrence was contributed to by the board not being nailed, by its moving in the plane of the decking or by some careless steps by the plaintiff. It is trite to observe that the onus is on the defendant and it suffices to record that it has failed to prove that the plaintiff contributed to his damage by any relevant failure on his part to take reasonable care for his own safety.

51 I turn to the assessment of damages. Counsel are agreed that, although there has been legislative change since to the situation, in the present case the plaintiff is entitled to damages assessed in accordance with the common law without statutory caps or other forms of damage assessment inhibitions.

52 There are some circumstances about the plaintiff’s pre-accident health which are relevant to the assessment of damages. In about 2000 he developed rheumatoid arthritis affecting multiple joints throughout his body. The progress of this disease was likely to become incapacitating in the course of time. The subject accident occurred on 10 February 2002. Although, as I have mentioned above, the plaintiff completed the deck, the situation with his leg was deteriorating. I will return to some detail of this. After treatment, including surgery, he returned to limited hours of work in June 2002 and to full time but limited capacity occupation the following month.

53 In October 2002 he underwent surgery for the removal of cataracts from his eyes. In February 2003 he retired and received a disability pension, significantly by reason of his arthritis. In April 2003 he suffered a heart attack and a coronary artery bypass was performed. In May 2003 he had a further heart failure incident which was accompanied by renal failure and he was submitted to further surgery. In November 2003 he was operated on for right carpal tunnel repair. In May 2004 he had another cataract removal procedure. In September 2004 he suffered a gall bladder attack and was admitted to hospital and, on the day after admission, had another heart attack. In November and December, his gall bladder was removed and angioplasty with the installation of a stent was undertaken. In June 2005 he was hospitalized for another seven weeks following kidney, liver and heart complications.

54 The foregoing recitation was largely extracted from a chronology handed up by senior counsel for the plaintiff as an aid to his address, the content of which I do not understand to be in dispute. The final observation on these matters is to note that the plaintiff has had a long term diagnosis of diabetes and has been insulin dependent for twenty five years and, diagnosed but non insulin dependent for about five years prior to that.

55 Despite this somewhat catastrophic history, I record that, whilst the plaintiff is obviously not in robust good health, he presented in Court as cheerful and independent and did not move about the Court in the fashion of a substantially incapacitated person or an invalid.

56 On the day of the accident the plaintiff was seen by Dr Schulze, who was on duty for his long term general practitioner Dr Ransom. He was advised to elevate his leg and use cold packs and take appropriate analgesics. Following this regime he completed the deck, however the leg became “inflamed and angry” and Dr Ransom ordered antibiotics.

57 By 4 March 2004 the wound on the leg was displaying a black layer of full thickness of dead skin. Dr Ransom drained and probed this and detected that the wound extended deeply into the muscle layer. He referred the plaintiff to Dr Walton, a plastic surgeon who performed several operations to debride the dead and damaged tissue. Grafts were necessary.

58 The plaintiff has been left with a ugly scar and a permanent area of numbness about it. A gauge of the seriousness can be seen in the early photographs (Exhibit E) and the later situation can be seen in Exhibit F and a photograph contained within Exhibit 1. As the medical reports show, his wounds have become gravely infected. I accept the descriptions in the reports of Dr Ransom and Dr Walton, the treating doctors. A difficult issue is the effects of injury upon the underlying health problems of the plaintiff.

59 Dr Fuller, an orthopaedic surgeon, saw the plaintiff for opinion. In his report of 10 February 2006 he expressed the belief that the accident was “a contributing factor to the aggravation of diabetes and arthritis” continuing and resulting in the plaintiff ceasing work in 2003. Dr Carr, a rheumatologist, whose reports were tendered by the defendant answered in the affirmative an enquiry whether traumatic events such as the accident contributed to aggravation of conditions such as rheumatoid arthritis and diabetes. Dr Munro, a general surgeon, whose reports were also tendered by the defendant, whilst acknowledging his non specialist qualifications in the area, thought that acute infection such as the leg injury would aggravate diabetes in the short term but he did not think there was a clear link between the accident and flare up of arthritis. Dr Walker, a plastic surgeon whose report was tendered by the defendant did not address this issue.

60 Whilst I accept that the accident, the injury and its aftermath particularly the infection, would have aggravated the plaintiff’s underlying conditions of diabetes and arthritis, the effects of such aggravation cannot be quantified and I am persuaded that the aggravating effects are likely to have remitted over time and ceased being operative by now.

61 The plaintiff is left with an ugly scarred leg and its weakness causes him to walk with what has been observed by doctors to be a slight limp. I accept the evidence of Dr Fuller that the plaintiff will require to treat the damaged area with sorbolene and hydrocortisone cream and that this requirement is likely to continue indefinitely.

62 The first element of damage with which I deal is economic loss. I am conscious that the plaintiff went onto a pension in February 2003 and I am satisfied that certainly by December 2004 the plaintiff had no capacity for gainful occupation for reasons of health unrelated to the consequences of the accident and that that will remain the case into the future. Damages under this head will need to reflect past incapacity only.

63 Exhibit N shows nett profit from trading in the income year ending 30 June 2001 of $37,747. For the purpose of assessment I accept the plaintiff’s submission that Mrs Mayes should have 20 percent of that figure attributed to her for her work. Treating then the above figure as a joint profit and allowing for taxation and the division between the partners, I would calculate a guide figure of the plaintiff’s loss of income at a rate of $460 per week nett.

64 From the date of the accident to the end of December 2004 is about 150 weeks. During that period the plaintiff had periods of capacity and in fact the partnership had nett profits from trading in the years ended 2002 and 2003 of $20,030 and $16,910 respectively. The decline in profit resulted in the incapacity of the plaintiff during periods when it was exclusively referrable to the effects of accident. Other periods where it was exclusively the result of intervening health situations and in other periods the probability is that both the accident induced and non accident induced factors were operative.

65 I include an award for the plaintiff $25,000 for economic loss. This is a judgment figure to represent the accident induced incapacity to the extent that it has been productive of economic loss. For some guidance in reaching that figure I have noted that a total loss of $460 per week for 150 weeks would be $69,000. 80 percent of nett partnership profit for the years ending 2002 and 2003 would be $29,552 which I would take to be represented as an after tax figure of $23,640. On those figures the loss to December 2004 would be $45,360. I do not have figures for June to December 2004 and, of course, the figure for year ended 2002 includes from July 2001 to February 2002 which was pre accident. I also bear in mind that the plaintiff obtained the pension in February 2003.

66 I consider that as time went on towards December 2004 the contribution of non accident induced factors would increase until accident induced factors became extinguished. These calculations have been done as I have said to give me some guide as to a fair amount to represent accident caused economic loss.

67 That loss which I have reflected as $25,000 has been wholly sustained by December 2004. I am conscious that it accrued over the preceding twenty two months however, it will do justice to the parties if interest at a selected rate of 9 percent were awarded on that loss from that date, a rounded period of two and half years. The interest component will be $5,625.

68 A claim is made for future out of pocket expenses. Dr Fuller estimated a cost of $400 to $500 per annum for future consultations with a general practitioner. I do not find that that is a reasonable or a likely requirement. The swelling and tightness of the scar are predicted to settle in time by Dr Walton and the remote risk that some breakdown may require further attention by general practitioner and/or specialist can be accommodated within general damages.

69 The plaintiff’s comfort will however, need the application of sorbolene (or similar) and hydrocortisone cream as noted by Dr Fuller. The plaintiff submitted a continuing loss of $30 per week for twenty years. The life expectancy of a male of the plaintiff’s age is statistically twenty six years, but the submission reduces this to allow for the plaintiff’s multiple underlying illnesses. I have some difficulty with the estimate of $30 per week. I observe that if the plaintiff expended $30 per week on creams every week since the accident he would have expended more than four times the agreed out of pockets. I appreciate that he would not have started using creams until the graft was stabilizing but the calculation indicates that Dr Fuller’s estimate is somewhat extravagant.

70 I would allow $10 per week for twenty years. On 5 percent tables (as submitted by the plaintiff) the appropriate factor is 666.4 and $6,664 will be included in the damages to cover this future expenditure.

71 A claim for past care is made. The evidence of the plaintiff and his wife is accepted. The principles whereby such an element can be included in damages are plain and do not require recapitulation. The claim is relatively minor. In early months it is postulated at two hours per day for about eight weeks. A schedule of damages supplementary to address calculated this claim as $2,240. A claim was then made from June to December 2002 at the rate of eight hours per week culminating in a sum of $4,160. I would include these amounts which I find to be consistent with the evidence. Interest for three and half years on the total of $6,400 at 9 percent is $2,016.

72 Out of pocket expenses are agreed at $1,665. The final ingredients are general damages and interest thereon. General damages are necessarily matters of impression. The plaintiff sustained what it first appeared to be a minor scraping injury but, complicated by infection, he has been left with a significant permanent disfigurement and some disability. I take into account the above matters including those that I have said would be accommodated in general damages and I assess a figure of $50,000.

73 Interest is payable on the notional past element of that assessment which for this purpose I will assume to be $25,000 and at the rate of 2 percent in accordance with authority I include a further $2,165.

74 The total of the above ingredients is $99,535. I direct entry of judgment for the plaintiff for that amount.

75 As I have recorded, this cause was moved into this Court entirely as a result of the desire of the defendant to pursue a cross claim against a foreign corporation. The defendant is to pay the plaintiff’s costs of action including reserved costs and I expressly order that that assessment be in accordance with the full scale of costs applicable to an action brought in this Court. For the assistance of any assessment of costs I record that the plaintiff was put to strict proof of difficult factual issues. Of course, no criticism is made of the defendant for so requiring, but despite the modest damages sought and now assessed, it was for that reason an appropriate case in my view for the retainer of two counsel.

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